Opinion
No. 97 C 0446.
February 23, 2000.
MEMORANDUM OPINION AND ORDER
Pending is plaintiffs' counsel petition for interest, attorneys' fees and costs pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., For the reasons set forth below plaintiffs' motion is granted in part and denied in part.
BACKGROUND FACTS
This was an action for the collection of delinquent employee benefit contributions under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1145. It is undisputed that defendant defaulted in this action. On June 21, 1999, this Court granted summary judgment in favor of plaintiffs and awarded damages in the amount of $32,404.26. The Court then directed plaintiffs' counsel to file his verified petition to prove-up all additional amounts owed by defendant in accordance with 29 U.S.C. § 1132 (g)(2). This petition was filed on August 26, 1999 and to date no response brief objecting to the amounts sought has been filed.
DISCUSSION
In determining the amount of attorney's fees and costs to award to counsel for the prevailing party, the burden is on the party seeking the award to substantiate the hours worked and the rate claimed. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). The district court must review the fee request and has the discretion to increase or decrease the amount in light of twelve factors. Id. at 429-30 n. 3, 103 S.Ct. at 1937-3 8 n. 3. The court must give a "concise, but clear explanation" for each modification to the proposed amount. Smith v. Great American Restaurants, Inc., 969 F.2d 430, 439 (7th Cir. 1992). In analyzing the fee request, "the most critical factor is the degree of success obtained." Estate of Orst v. O'Brien, 979 F.2d 511, 515 (7th Cir. 1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. at 1941).
These factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fees; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the profession relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
1. Statutory Interest
Plaintiffs seek to recover two types of interest under ERISA. First, plaintiffs seek $4,505.28 in interest on delinquent contributions pursuant to 29 U.S.C. § 1132 (g)(2)(B) for interest accruing for the period of 7-15-98 to 8-15-99. Plaintiffs also seek $11,957.22 in statutory double interest pursuant to § 1132(g)(2)(C)(i). This sum consists of $7,451.94 of interest for the period through 7/15/98, (included in the audit) and $4,505.28 of interest for the period between 7/15/98 and 8/15/99.
The relevant costs provision for actions under § 1145 is 29 U.S.C. § 1132 (g)(2), which provides in part:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provide for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A) . . .
Section 1132(g)(2)(C) goes on to provide that the court shall apply the interest rate prescribed by the terms of the pension plan itself which, in this case is 8%. Under subparagraph (C), the court should then award an additional amount equal to the greater of the interest on the unpaid amounts or liquidated damages provided for under the plan. Plaintiffs request for $11,957.22 in interest pursuant to 29 U.S.C. § 1132 (g)(2)(C)(i) for the entire period of delinquency is hereby awarded. In addition $4,505.28 for simple interest on delinquent contributions accruing between the months of 7-15-98-8-15-99 pursuant to 29 U.S.C. § 1132 (g)(2)(B) is hereby awarded.
2. Attorneys' Fees
In determining the rate to award plaintiffs' counsel, the court must look at "the rates" charged by lawyers in the community of "reasonably comparable skill, experience and reputation." People Who Care v. Rockford Board of Education, 90 F.3d 1307, 1310 (7th Cir. 1996). The Seventh Circuit uses two methods to calculate fee awards: first is to use the current market rate; second is to base the award on the rate the attorney charged at the time services were rendered and then add interest. Smith v. Village of Maywood, 17 F.3d 219. 221 (7th Cir. 1994). The current market rate is capped at the rate for attorneys engaged in the type of litigation in which the fees is sought. Cooper v. Casey, 97 F.3d 914, 920 (7th Cir. 1996).
Plaintiffs' counsel presents evidence by way of a sworn affidavit that the normal and customary market rates charged for their work ranges from $110. per hour to $205. per hour. Douglas A. Lindsay rendered .80 hours of legal services at the $190. per hour rate; 3.60 hours at the $200 per hour rate; and .40 hours at the $205. per hour rate for a total sum of $954.00. Michael J. Lybrook rendered 9.60 hours of legal services at the $110.00 rate, 34.70 hours at the $120.00 rate; 44.80 hours at the $130.00 rate; and 118.50 at the $140.00 rate for a total sum of $27,634.00. Douglas Vera a paralegal charges $70. per hour and Albert Davis a paralegal $50. per hour. While the billing rates certainly appear reasonable in light of Mr. Lindsay's and Lybrook's experience the number of hours expended by Mr. Lybrook in light of his experience do not.
Many of Mr. Lybrook's entries are excessive and redundant in light of the work required to bring this case to case to judgment. The "drafting and reviewing of files" entries are terribly excessive. For example, on 01/20/97 Mr. Lybrook reviews the contribution report and begins drafting the complaint billing 2.70 hours. The next day he continues drafting Count II of the complaint and totals the figures for the relief sought for another 2.60 hours. The following day he prepares the suit papers for filing and drafts correspondence to Mr Ed. Devine for another 1.10 hours. On 2/13/97 he reviews closed files for another 1.50 hours. On 06/30/97 he again reviews the file and drafts a default order for 1.80 hours of work. Similar excessive entries can be found throughout the billing statement. In reviewing the complaint filed in this case you see it is a standard complaint and absolutely nothing exceptional or unusual warrants all the drafting hours Mr. Lybrook claims he spent. Likewise, the audit report in this case is only 5 pages. Finally, the pleadings in this case are few and judgment was ordered by default. The motions filed were straightforward, simple and unopposed. We cannot conclude that the hours spent by Mr. Lybrook's are reasonable in light of redundant and excessive billings found throughout the petition. Hence, we award Mr. Lybrook half of his fees requested for his work which is $13,817.00. The paralegal fees at a rate of $50-$70 per hour are hereby approved and $636.00 for paralegal time is hereby awarded.
3. Expenses, Costs and Disbursements
Plaintiffs' counsel also seeks $2,507.24 in expenses, costs and disbursements. This amount includes $1,470.00 in fees for audit services and other miscellaneous costs. These costs are reasonable and are reimbursable.
CONCLUSION
For the foregoing reasons, plaintiffs' counsel Lewis, Overbeck Furman's petition for attorneys's fees and non-taxable expenses are granted in part and denied in part (18-1 18-2). Plaintiffs' counsel is awarded $15,007.00 in attorney and paralegal fees, $2,507.24 in costs and $16,462.50 in interest.
SO ORDERED
Copies to:
Douglas Allan Lindsay John J. Harhen Lewis, Overbeck Furman Mover Harhen 135 South LaSalle Street 20 North Clark Street Suite 2300 Suite 711 Chicago, Il. 60603 Chicago, Il. 60602